RESTRICTIONS ON THE REGISTRABILITY OF DESIGNS
In accordance to Act, a new and/or original design which is solely judged on the parameters of aesthetics and visual appeal are registrable in India. The design may include shape, configuration, pattern, ornamentation and/or composition applied on an article/product. However, similar to the Indian Patents Act, 1970, certain directions and restrictions on the publication and registrability of designs are imposed, even if the designs qualify the statutory requirements for registration.
The designs are considered prejudicial to the security of India, if the design applied on the article/product are in the interest of national security, such as an article/product which is used for war or military establishments or other emergency in international relations.
As per Section 46 of the Act, the secrecy directions inflicts restriction on the publication of details related to the designs for which an application has been filed before the Design Wing of the Indian Patent Office (IPO), if it is considered prejudicial to the interest of India and is relevant to defence purposes. Further, the relevant officers at IPO have been empowered to cancel the design registration, which is notified as design of national interest by the Central Government in the Official Gazette.
The Design Manual, read along with the Act, clarifies that while examination of the design application, in case the Examiner opines the design is prejudicial to the security of India and thus objectionable under the Act, he would report and communicate the same to the Controller. By virtue of powers vested with the Controller under Section 34 of the Act, such design applications are referred to the Defence Research Development Organisation (DRDO), Ministry of Defence, Government of India (GOI), for further directions in this regard. The design application would proceed further, if the favourable orders are issued by GOI.
REMEDIES AGAINST REFUSAL OF A DESIGN APPLICATION
In case, orders or directions of refusal of acceptance are passed by the GOI, the Act provides an opportunity to the applicant/aggrieved party to submit a response to the objections raised by the Controller under Section 46 and can request a hearing before the Controller to discuss the matter.
The applicant/aggrieved party may appeal before the High Court under Section 5 (4) of the Act, if the application is refused by the Controller.
REMEDIES AGAINST CANCELLATION OF A REGISTERED DESIGN
The applicant of the design application is provided an opportunity to submit response to the objections raised by the Controller under Section 46 of the Act. The applicant can also request the Controller for hearing to discussion the matter. If the Controller refuses to register the design, any person aggrieved by such refusal may appeal to the High Court.